In patent infringement case, plaintiff Commil wins new trial due to lawyer's remarks

A Cisco attorney's remarks apparently referring to a plaintiff's Jewish religion has won the plaintiff a new trial in the patent infringement case between his company and Cisco. Commil USA sued, won and is suing Cisco again for infringement of patents for setting up wireless communications between PBXes, mobile units and base stations, according to this post from International Business Times.

Commil won the suit, which was filed in 2007, but felt the almost $4 million award was too small. Commwil got the new trial but not because of the size of the award - it was due to Cisco attorney Otis Carroll's remarks during cross examination of Commwil principal Jonathan David, which the judge ruled may have prejudiced the jury.

During cross examination, Carroll asked David, according to the Times:

"Well, did you eat dinner with him? Did you talk to him? Did you say hi to him?" David answered yes, they had had dinner at Bodacious Barbeque and Carroll said, "I bet not pork."

The reference to pork was intended to point out to the jurors that David was Jewish, the Times reported, citing comments from Commil's lawyers. And during closing arguments, Carroll made another reference to Jews when citing the trial of Jesus in the Bible:

"And when you figure out what the truth is, you'll know how to answer that verdict form. You remember the most important trial in history, which we allread about as kids, in the Bible had that very question from the judge. What is truth?"

Commil's lawyers said this reference implied that the jury was a group of Christians and the owners of Commil were Jews, in order to prejudice the jury against Commil, according to the Times post.

In response to the motion for a new trial, another Cisco lawyer claimed Carroll's remarks were innocuous, that Carroll was contrite, and that there was no factual basis for finding error in the jury's initial verdict, according to the Times post. But the judge disagreed and granted a new trial, which will select jurors on April 4:

"...the court concludes that the comments prejudiced the jury's findings regarding indirect infringement and damages. These comments had a tendency to appeal to the prejudices of the jurors... As such, even though no objections were made to these remarks, the court is convinced that the jury's verdict is inconsistent with substantial justice."

Jim Duffy has been covering technology for over 28 years, 23 at Network World. He covers enterprise networking infrastructure, including routers and switches. He also writes The Cisco Connection blog and can be reached on Twitter @Jim_Duffy and at jduffy@nww.com.